HARRIS, Leslie J.
Winter 2004, pages 29 - 46The Court, Child Custody, and Social Change: The Rhetorical Role of Precedent in a 19th Century Child Custody Decision
Abstract: In the late 19th century the United States experienced a shift in presumption from paternal custody following divorce to maternal custody. This paper examines one child custody decision in the midst of this shift and finds that, ironically, rhetorical appeals to precedent and tradition were used to change precedent and tradition. More specifically, social change was grounded in the court's implicit gender hierarchy and rhetorically justified by appealing to precedent and tradition in particular ways, demonstrating that precedent is a rhetorical device that has force when used persuasively.